Citation Nr: 0403888
Decision Date: 02/10/04 Archive Date: 02/23/04
DOCKET NO. 96-33 981 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased disability rating for pes planus,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from August to November
1989, from January to April 1991, and from January to March
1993.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a February 1996 rating decision of the
Winston-Salem, North Carolina, Department of Veterans Affairs
(VA) Regional Office (RO) which, in part, granted service
connection for pes planus, evaluated as noncompensably
disabling from June 23, 1994.
In March 2003, the rating for pes planus was increased to 10
percent, effective May 13, 1999. The veteran has not
indicated that he is satisfied with the currently assigned 10
percent disability rating. Consequently, the issue of
entitlement to a disability evaluation in excess of 10
percent for pes planus remains in appellate status. See AB
v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not
granted the maximum benefit allowable under the Rating
Schedule, the pending appeal as to that issue is not
abrogated].
This case was previously before the Board and was remanded to
the RO in April 1998, July 2002 and June 2003.
REMAND
In June 2003, the Board remanded this case to the RO for
compliance with the notification requirements of the Veterans
Claims Assistance Act of 2000 (VCAA) and its implementing
regulations. In July 2001, the RO sent the veteran a VCAA
notification letter, however this letter did not fully comply
with the statutory and regulatory provisions because it did
not advise the veteran of what the evidence must show to
support his claim. Another VCAA notification letter which
fully complied with the VCAA was sent to the veteran in
November 2003.
The record shows that a Supplemental Statement of the Case
(SSOC) was issued in August 2003, prior to the corrected VCAA
notification letter in November 2003. To avoid potential
prejudice to the veteran, this case must be remanded to the
Veterans Benefits Administration (VBA) for readjudication of
the claim for an increased rating for pes planus. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
Additionally, the June 2003 remand instructed the RO to
consider functional loss due to pain under 38 C.F.R. § 4.40
(2002) and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45 (2002) in evaluating the veteran's pes planus. See
DeLuca v. Brown, 8 Vet. App. 202 (1995). The August 2003
SSOC did not address the issue of functional loss due to
pain.
The United States Court of Appeals for Veterans Claims (the
Court) has held that RO compliance with a remand is not
discretionary, and that if the RO fails to comply with the
terms of a remand, another remand for corrective action is
required. Stegall v. West, 11 Vet. App. 268 (1998).
The Board apologizes for the delay in the adjudication of
this case. The Board notes, however, that in the January
2003 written brief, the veteran's representative also
requested that the case be remanded for readjudication.
Accordingly, this case is REMANDED for the following:
VBA should adjudicate the issue on
appeal, with particular attention to the
applicability of the provisions of 38
C.F.R. §§ 4.40 and 4.45. [DeLuca].
If any benefit sought remains denied, the veteran and his
representative should be provided a supplemental statement of
the case, which reflects consideration of all additional
evidence, and the opportunity to respond. Thereafter, the
case should be returned to the Board for further appellate
review. The purpose of this REMAND is to obtain additional
evidence and ensure that the veteran is afforded all due
process of law. The Board intimates no opinion, either
factual or legal, as to the ultimate conclusion warranted in
this case. No action is required by the veteran until
contacted.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002)
(Historical and Statutory Notes).
_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).